Citation Nr: 0619686
Decision Date: 07/06/06 Archive Date: 07/13/06
DOCKET NO. 02-00 679 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUE
Entitlement to service connection for osteoporosis, claimed
as secondary to service-connected hypothyroidism.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
A. J. Turnipseed, Associate Counsel
INTRODUCTION
The veteran had active service from October 1943 to January
1948.
This matter comes before the Board of Veterans' Appeals
(Board) from a June 2000 rating decision of the above
Department of Veterans Affairs (VA) Regional Office (RO),
which denied service connection for osteoporosis.
This case was previously before the Board in November 2004,
at which time entitlement to service connection for
osteoporosis was denied. That decision was appealed to the
United States Court of Appeals for Veterans Claims (CAVC).
The record contains a Joint Motion for Remand, dated in March
2006, wherein the veteran's attorneys and the VA General
Counsel agreed to remand the veteran's claim. In March 2006,
a CAVC order was issued, remanding the veteran's claim for
reasons which will be further explained herein.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will provide
notification when further action is required on the part of
the appellant.
REMAND
The March 2006 Joint Motion indicates that a remand is
required in this case due to perceived deficiencies in the
Board's analysis as provided in the November 2004 decision,
and for compliance with the statutory duty to assist.
Specifically, the Joint Motion noted that VA has a duty to
assist the veteran in the development of the claim, and
concluded that VA did not comply with the Veterans Claims
Assistance Act of 2000 (VCAA) when it did not attempt to
obtain private medical records from Dr. Theen, a private
endocrinologist who treated the veteran for a two-year
period. Accordingly, on remand the Board will request that
the RO seek to obtain those records.
In an April 2006 letter from the Board, the veteran and her
representative were advised that they could submit additional
argument and/or evidence in conjunction with the appeal. In
June 2006, the veteran submitted correspondence which
indicated that she did not have any additional evidence to
submit. However, later that same month, the veteran
submitted evidence directly to the Board, without a waiver of
RO review. Therefore, the newly submitted evidence must be
considered initially by the RO. See 38 C.F.R. § 20.1304(c)
(2005).
In addition, during uring the pendency of this appeal, in
March 2006, the Court of Appeals for Veterans Claims issued a
decision in the case of Dingess v. Nicholson, 19 Vet. App.
473 (2006), which held that enhanced VCAA notice may be
needed in certain claims for compensation. The Board is
confident that the RO will effectuate the new requirements of
the Court in this matter.
For the foregoing reasons, the Board concludes that this case
must be remanded to the RO in accordance with due process
concerns, and in order to undertake additional evidentiary
development, as indicated in the CAVC remand.
Accordingly, the case is REMANDED for the following action:
1. Request the veteran identify all VA and
non-VA medical care providers from whom
she has received treatment for
osteoporosis since she was discharged
from service. The veteran has
identified Dr. Theen, a private
endocrinologist, as a physician who
treated her for osteoporosis for two
years. The veteran should be advised
to submit records of any such treatment
or provide all details needed to obtain
this evidence and complete any
necessary release forms.
2. If deemed appropriate, based on any new
evidence submitted, the veteran should
be scheduled for a VA examination to
determine whether she currently has
osteoporosis that is proximately due
to, the result of, or aggravated by
service-connected hypothyroidism. Any
and all studies deemed necessary by the
examiner should be completed. The
claims file must be made available to
the examiner for review in conjunction
with the examination, and the
examination report should reflect that
such review is accomplished. A
rationale should be provided for any
opinion offered.
a. The examiner should be requested
to consider the veteran's medical
history, including her thyroid-
stimulating hormone and bone
mineral density levels as shown in
the claims file. The examiner
should also consider the veteran's
history of adrenocortical hormone
use.
b. The examiner is requested to provide
an opinion as to whether it is more
likely than not (i.e., to a degree
of probability greater than 50
percent), at least as likely as not
(i.e., a probability of 50 percent),
or less than likely (i.e., a
probability of less than 50 percent)
that any currently diagnosed
osteoporosis is proximately due to,
the result of, or aggravated by
service-connected hypothyroidism.
c. Note: The term "at least as likely
as not" does not mean merely within
the realm of medical possibility,
but rather that the weight of
medical evidence both for and
against a conclusion is so evenly
divided that it is as medically
sound to find in favor of causation
as it is to find against it.
d. Note: The term "aggravated" in the
above context refers to a permanent
worsening of the underlying
condition, as contrasted to
temporary or intermittent flare-ups
of symptomatology which resolve with
return to the baseline level of
disability.
3. Thereafter, the issue on appeal should
be readjudicated. If the benefit
sought on appeal is not granted to the
veteran's satisfaction, the veteran and
her representative should be provided
with a supplemental statement of the
case and afforded the appropriate
opportunity to respond thereto.
Thereafter, the case should be returned to the Board for
further appellate consideration, if otherwise in order. The
Board intimates no opinion as to the ultimate outcome of this
case. The veteran need take no action unless otherwise
informed. The appellant has the right to submit additional
evidence and argument on the matter or matters the Board has
remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
__________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a final decision
of the Board of Veterans' Appeals is appealable to the United
States Court of Appeals for Veterans Claims. This remand is
in the nature of a preliminary order and does not constitute
a final decision of the Board on the merits of the appeal.
38 C.F.R. § 20.1100(b) (2005).